The Trump administration is pushing for legislation that would allow law enforcement to gain access to smartphones when the owners are the subjects of criminal investigations. Tech companies, such as Apple and Google have up until now been largely resistant to the changes.
“Increasingly, the tools we use to collect evidence run up against technology that is designed to defeat them,” Deputy Attorney General Rod Rosenstein told the United States Naval Academy during an address in October.
“The advent of ‘warrant-proof’ encryption is a serious problem. Under our Constitution, when crime is afoot, impartial judges are charged with balancing a citizen’s reasonable expectation of privacy against the interests of law enforcement. The law recognizes that legitimate law enforcement needs can outweigh personal privacy concerns,” he said.
“Our society has never had a system where evidence of criminal wrongdoing was totally impervious to detection, especially when officers obtain a court-authorized warrant. But that is the world that technology companies are creating.”
Law enforcement refers to this phenomenon as “going dark.”
Major technology companies have argued that creating back-door passcodes that allow law enforcement officials access to individuals’ smart phones carries with it immense risks. The data stored on those phones becomes the target for both individual and state-sponsored hackers. Tech companies have come to characterize their resistance to such measures as features rather than drawbacks.
The debate became public in 2016 when the FBI, investigating the San Bernardino terrorist attack, requested, and were denied, access to the assailant’s iPhone by Apple. The FBI sued the company over the issue but eventually dropped the case after it successfully gained access to the phone without Apple’s help.
The debate died down somewhat when the Trump administration came into office but is now reigniting.
FBI and Justice Department officials have begun pushing for what is known as “extraordinary access,” the ability to access information on a smartphone, with a court order, in instances of criminal activity and investigations.
According to reports, Trump administration officials have begun debating whether to ask Congress for legislation requiring tech companies provide access to devices. Law enforcement officials are convinced that such exceptional access can be provided without significantly compromising security for users.
Privacy advocates are primed to push back on those efforts however. They argue no fool-proof solution for universal access exists. Criminals could delete any back-door access key from their device or use older phone models that have outdated software that don’t have the access information. Or they could simply use phones built for foreign markets. Such workarounds, they argue would mean that only law-abiding citizens would be vulnerable to the privacy and security risks such access carries with it.
While proponents of access acknowledge the shortcomings, they say that even a solution that mitigates some of the problem would be an improvement.
“No solution will be perfect. If only major providers refrain from making their products safe for terrorists and criminals, some sophisticated criminals may migrate to less-used platforms. But any progress in preserving access to communications methods used by most criminals and terrorists would still be a major step forward,” Rosenstein said.
Photo by Intel via Flickr